ALJDEC decisions subject to certification as final

2012A-2562-ROC-rhg · Registrar of Contractors · 2013-12-04

IN THE OFFICE OF ADMINISTRATIVE HEARINGS

HEARING: November 15, 2013 APPEARANCES: Ramin Salari appeared personally. James Robert Carter appeared personally. ADMINISTRATIVE LAW JUDGE: Brian Brendan Tully _____________________________________________________________________ FINDINGS OF FACT 1. James Robert Carter, doing business as Jim Carter’s Tile (“Respondent”), is the holder of License No. C48R.101981-R issued by the Registrar of Contractors (“Registrar”). That license expired on April 1, 2012. 2. Ramin Salari (“Complainant”) is the owner of a residence located at 5326 East Sanna Street, Paradise Valley, Arizona. 3. On or about August 18, 2009, Complainant and Respondent entered into a written contract for work to be performed on Complainant’s fountain. Respondent agreed to remove the existing tile, haul it away, and to install new tile for a contract price of $4,914.00. Respondent agreed to provide a five-year warranty on his work. 4. On or about September 4, 2009, Respondent completed his scope of work. Complainant paid Respondent the total contract price. 5. On or about February 15, 2011, Complainant filed a Complaint with the Registrar alleging deficient workmanship by Respondent. Complainant’s Complaint stated that “[v]arious tiles installed by the Contractor are popping/falling off outdoor fountain.” The Registrar designated the Complaint as Complaint No. 2011-1016. 6. The Registrar’s assigned inspector, Scott Deering, performed a jobsite inspection to view the alleged workmanship deficiencies. As a result of the jobsite inspection, Inspector Deering issued a Corrective Work Order dated March 11, 2011, directing Respondent to perform remedial work to the fountain tiles. 7. After Respondent removed and replaced some of the fountain tiles, the Registrar closed Complaint No. 2011-1016. 8. On or about May 16, 2012, Complainant filed a second Complaint concerning Respondent’s installation of the fountain tiles. Complainant alleged that Respondent’s remedial work did not correct the fountain tile-issue. The Registrar designated the second Complaint as Case No. 2012-2562 and assigned it to Inspector Deering. 9. Inspector Deering performed a jobsite inspection in Case No. 2012- 2562. As a result of that inspection, Inspector Deering determined that Respondent was not responsible for the condition of the fountain tiles because it appeared that there were structural cracks and movement causing the fountain tiles to become loose and break bond with the fountain. 10. Complainant requested a hearing in Case No. 2012-2562. 11. The Registrar issued a Citation and Complaint in Case No. 2012-2562 charging Respondent with violating the provisions of A.R.S. § 32- 1154(A)(3), specifically A.A.C. R4-9-108. 12. Respondent filed a timely written answer to the Citation and Complaint denying any statutory violation and affirmatively alleging that movement in the underlying fountain structure was causing the tile to pop off the fountain. 13. The Registrar referred the matter to the Office of Administrative Hearings, an independent agency, for an evidentiary hearing. 14. A hearing was held in Case No. 2012-2562 on December 28, 2012. 15. On or about January 16, 2013, an Administrative Law Judge Decision in Case No. 2012-2562 was transmitted to the Registrar. 16. On February 25, 2013, the Director of the Office of Administrative Hearings issued a Certification of Decision of Administrative Law Judge in Case No. 2012-2562, pursuant to A.R.S. § 41-1092.08(D), after the Registrar had not taken action regarding the Administrative Law Judge Decision by the deadline date. 17. On March 11, 2013, Complainant filed a motion for rehearing, alleging bias and abuse of discretion on the part of the Administrative Law Judge. Respondent had until March 26, 2013 to file a response. No response was received. 18. On March 27, 2013, the Director of the Office of Administrative Hearings issued an Order Granting Change of Administrative Law Judge and Order Recommending that Complainant’s Motion for Rehearing be granted. 19. On September 20, 2013, the Registrar issued an Order Granting Change of Administrative Law Judge and Order Granting Motion for Rehearing in Case No. 2012-2562. The matter was forwarded to the Office of Administrative Hearings for a rehearing. 20. A rehearing was conducted before the Office of Administrative Hearings on November 15, 2013. 21. On November 8, 2013, Inspector Deering performed a prehearing jobsite inspection at Complainant’s residence. Respondent did not attend the inspection. During that inspection, Complainant removed tiles from the fountain so that the structure could be observed. Inspector Deering testified that after the thinset had been scrapped away, he observed no structural cracks. Inspector Deering also testified that he observed grout failing at grout joints, resulting in water getting behind tiles and breaking down the bond of thinset. 22. Respondent asserted at hearing that the damage is being caused by structural cracks, but he failed to present any credible evidence to support that position. 23. The weight of credible evidence supports a finding that the deficient condition of Complainant’s fountain tiles is the result of Respondent’s deficient workmanship and not due to structural cracking in the fountain. CONCLUSIONS OF LAW 1. The Registrar has jurisdiction over Respondent and the subject matter in this rehearing. Pursuant to A.R.S. § 32-1154(C), the expiration of Respondent’s contracting license does not deprive the Registrar of jurisdiction to proceed with a disciplinary proceeding against the license and to impose discipline against the license for any proven statutory and regulatory violations by Respondent. 2. Pursuant to A.A.C. R2-19-119(B), Complainant has the burden of proof in this matter. The standard of proof is by a preponderance of the evidence. See A.A.C. R2-19-119(A). 3. The evidence of record established that Respondent violated the provisions of A.R.S. § 32-1154(A)(3), specifically A.A.C. R4-9-108, by failing to meet workmanship standards for his work on Complainant’s fountain. The weight of credible evidence established that there is no structural cracking in Complainant’s fountain causing the dislodging of the tile as claimed by Respondent. Rather, it is concluded that Respondent’s deficient workmanship is the cause of the dislodging of the fountain tiles. 4. Pursuant to A.R.S. § 32-1154(B), the Registrar may impose discipline against Respondent’s contracting license for the above-cited statutory and regulatory violations. As a result of the expiration of his contracting license, Respondent cannot perform the required remedial repairs to Complainant’s fountain. The evidence of record supports the revocation of Respondent’s contracting license in this matter. RECOMMENDED ORDER In view of the foregoing, it is recommended that Respondent’s License No. C48R.101981-R be revoked on the effective date of the Order entered in Case No. 2012-2562.

In the event of certification of the Administrative Law Judge Decision by the Director of the Office of Administrative Hearings, the effective date of the Order shall be forty days from the date of the certification.

Done this day, December 5, 2013.

/s/ Brian Brendan Tully Administrative Law Judge

Transmitted electronically to:

William A. Mundell, Director Registrar of Contractors -----------------------

Office of Administrative Hearings 1400 West Washington, Suite 101 Phoenix, Arizona 85007 (602) 542-9826